Attempts
These are considered to be inchoate offences in the sense that they are not complete. We see that the law does not punish the intent alone, ordinarily there must be some criminal harm accomplished before liability will be imposed. Section 380 of the Penal Code is concerned with offences where people require the formation of intention, the preparation and the execution of the offence. In preparation we have remote and proximate acts of preparation.
Remote acts-Actus Reus is not complete, hence act not punished.
Proximate-Actus Reus is complete hence act punishable for it is an attempt.
Mens rea
In attempt it is mens rea, which the law regards as of primary importance and desire to prevent. Where the law prohibits certain consequences like death or injury to person then in order to be convicted of an attempt. The accused person must have foreseen that the consequence were likely to occur and desired that they should or conduct himself in the prohibited manner. E.g. crime of arson, the accused must have intended to set fire to the house; foreseen burning was a likely consequence and desired that consequence.
Actus Reus
As already stated, mere intention to commit an offence doesn’t constitute an attempt. An attempt to commit a crime is an act done with intent to commit the crime and forming part of a series of facts which should constitute its actual commission if it were not interrupted.
To constitute an attempt, the act done must be immediately and not mere remotely connected with the commission of the offence. In other words, it must be something more than mere preparation for the commission of the offence. It must be proved that the accused began to put his intention into execution by means adapted to its fulfillment and that he manifested his intention by an overt act.
In R.V. ROBINSON [1915] 2 KB 342, the appellant was charged with an attempt to obtain money by false pretences. He insured his jewelries after concealing jewelries and shouted for help when rescued and when jewelries were found in his shop he admitted that he wanted to obtain money by false pretences from the insurance company.
“…On appeal against conviction, it was held that what he had done was merely preparation for the commission of the crime not a step towards the commission of it. However the court held that(obiter) a claim for the money from the insurance company or a communication to them of the pretended burglary would have been sufficient to make him guilty of attempt…”
Attempt Theft
In cases of theft are no specific clauses of any attempt, and here asportation is very important, the thing must move from one place to another. In R. V. RHINO & OTHERS (1892) Cox 17 c.c. 491, it was held that in order to prove that an attempt to commit an offence has been committed it is not necessary to prove that had the attempt not been frustrated the offence could have been committed?
In the case of AMBOKILE MWAMALONGO V. R (1967) H.C.D No. 275, the accused was convicted of stealing from the person of another. He was pulling a purse out of the pocket of another person when a sudden movement by the intended victim’ prevented accused from obtaining the purse. However, the purse was far enough out of the intended victim’s pocket so that when he sat down immediately thereafter, his purse fell to the floor. On appeal
“…There was enough asportation and the accused was guilty of attempted pick pocketing…”
In KOMBO ABDARAMAN V. R. [1980] T.L.R. 90, the appellant was convicted of attempted pick pocketing, the appellant with another person pushed on Zefania Mmasi while the appellant unsuccessfully tried to force his hands into Zefania’s pockets and both fled when Zefania become inquisitive. The charge cited section 380 of the Penal Code and no more. On appeal:
“…In order to constitute an attempt the act of the accused must be such that if not interrupted they would end in the commission of a particular offence. When the appellant tried to force his hands into the complainant’s pocket, he had clearly put his intention into execution by means adapted to its fulfillment...”
Attempted Murder
In murder there is specific provision-section 211 of the Penal Code. On a charge of attempted murder it is not enough to show an intention to cause grievous harm. It must be proved that there was intent to kill. In R. V. CHRISTOPHER NGAMBILO (1967) H.C.DNo. 38, the accused was charged with attempted murder of one William. He came to William’s house and while aiming a gun in a general direction of William’s knee he said, “Today you will die”. He then shot William in the knee. The court said:
“…Where a charge is murder, the intention to cause grievous bodily harm will suffice to establish malice aforethought, but where the charge is attempted murder “the actual intention to kill must be proved”…”
In R. V. RUKONDO KAMANO (1968) H.C.D. No. 48, the accused was charged with attempted murder. He and several others shot a shower of arrows at complainant. They shot from about 40 paces away and one of the arrows hit complainant in the buttocks causing a wound. On appeal:
“…In view of the distance from which the arrows were shot and the other circumstances of the case, accused was guilty of the offence of an act intended to cause grievous harm, rather than attempted murder…”
Attempted Rape
The rule is: on a charge of rape, it must be shown not only that the accused intended to gratify his passion but that he intended to do so at all costs and not withstanding any resistance on the part of a woman-S 132 PC.
In the case of MULIRA V. R. 20 E.A.C.A, the appellant was convicted of attempted rape of his employee’s wife. The appellant entered her bedroom, switched off the light, put the hand over her mouth and with the other hand removed his shorts and lifted her pet coat. The woman screamed for help and when a torch was shone in the room he ran away. On appeal:
“…The conviction was set aside and substituted an assault with intent to ravish because it had not proved beyond reasonable doubt the accused intended to rape despite any resistance on the part of the woman…”
In OMARI V. R. (1971) H.C.D No. 362, the appellant was convicted of attempted rape. He grabbed the complainant, threw her down, tore her under pants and laid on her. The complainant stated however, that he did not unbutton his trousers in preparation of penetrating her private parts. On appeal it was held that:
“…From the proven facts it is quite clear that appellant’s act did not constitute an attempt to rape the complainant. The appellant didn’t undress, therefore appellant was found guilty of indecently ‘assaulting the complainant’…”
From the above cases we see that the courts were very strict in convicting an accused person of attempted rape. The rule laid down in the Mulira’s case was that mere preparation was not enough; the act of the accused must be proximate. The rule was known as the ‘pants down rule’, in that the accused must have undressed. If not, the accused was only guilty of indecent assault.
In the case of R. V. ANDREA AYARIT 1973 L.R.T. No. 92, Mfalila, Ag. J. (as then he was) dealt at length with the question of attempted rape. The facts of this case were that, on 13/06/72 the complainant one Gaudensia D/O Mwesengera was walking home from a shopping expedition. This was at night, around 10.00pm. the path she took passes through mango trees and as she was thus walking the accused came upon her from behind, he got hold on her and started stripping off her clothes. The complainant shouted for help. People appeared at the scene, thereupon the accused ran away. But he was arrested two days later and charged with attempted rape. He was convicted of indecent assault.
On revision Mfalila dealt at length with previous cases dealing with attempted rape. He found that in those cases judges concerned themselves with proximate and remote acts of the accused. He further stated that had the judges followed the principles laid down under section 380 of the Penal Code leaving aside the concepts of preparation and proximate, the result would have been different.
He observed that in the case of HARUNA and OMARI, the intention to rape was established and in both cases the accused had started putting their intentions to execution by overt acts clearly adapted to their fulfillment, namely, the holding of the complainants, tripping their clothes including underclothes and proceeding to lie on them.
Furthermore the judge went on to look at the expectation of an ordinary member of the society. He used the example from the case of HARUNAand OMARI that an ordinary member of the society would unhesitatingly say that the accused was guilty of attempted rape. He will say that having dragged the complainant to the ditch placed his hand over her mouth and pulled down her underclothes while lying on top of her but stopped short and fled when he was observed the accused clearly had attempted rape.
The judge after discussing past cases, he confines himself in the provisions of section 380 of the Penal Code.
Ø Whether the accused intended to rape the complainant.
Ø Whether he had started putting his intention into execution by some overt acts adapted to its fulfillment.
Ø Whether the overt acts had been established.
1. With regard to intention the accused himself admitted as much in his own words. He certainly began to put his intention into execution when he got hold of the complainant and started striping her clothes.
2. To constitute attempted rape there must be evidence of an attempt to have sexual connections with a woman not withstanding her resistance and execution of his intention by overt acts clearly adapted to its fulfillment.
3. Where existence of overt acts is established, it is not required to classify further the overt acts into preparatory and non-preparatory, proximate and remote.
4. It is immaterial, except as regard sentence, that the accused desisted from his own motive or otherwise from the further execution of his intention.
5. For any legal system to be effective, the concept of rights and wrongs must not be divorced from the expectation of the ordinary member of the society in which it operates.
Impossibility
In literal sense, there is no such thing as ‘legal impossibility’ because any behaviour and any conduct can be made criminal. What is meant is the distinction between conduct, which has been forbidden in penal law, and conduct, which is illegal. Legal impossibility is therefore an awkward expression of the principle of legality. In sum:
Unless the intended end is legally prescribed harm, causing it is not criminal, hence conduct falling short of that is not a criminal attempt i.e. the principle of legality. If the intended end is a legally prescribed harm, the failure to effect it because of the lack of factual condition necessary to its occurrence is no defense i.e. factual impossibility.
Section 380 of the Penal Code expressly provides that it is immaterial that by reasons of circumstances not known to the offender it is impossible in fact to commit the offence. Thus it is clear that impossibility is not a defense to a charge for attempt to commit an offence.
Furthermore, the use of ineffective means of carrying out a crime doesn’t negative the conduct of the person using those means from amounting to an attempt to commit the crime. Example, where the intention is to blow a safe, the use of weak explosives for that purpose is no defense. It is also clear that where the sole intention of the accused is to commit a crime, the fact that there circumstances unknown to him which render the commission of the crime impossible doesn’t negative the attempt. E.g. the taking of something by a pregnant woman with intent to procure her own abortion of something, which she believed to be a “noxious thing” but which in fact, is harmless.
Another situation is where the offender’s sole intention was to do an act not in itself criminal but where he believes that the particular circumstances he would be involved in criminal conduct. E.g. A man attempt to have sexual intercourse with a girl who is in fact over sixteen but whom he believes to be under eighteen.
Why conviction for an attempt?
The answer is that he stands in need of a punishment or correction because he has shown that although he knows that legally he ought not to do this thing. He is prepared to defy the law in order to pursue his own self-ends. He thus shows himself to a dangerous man, prepared to break the law when it suits him.
In the case of EDWARD MICHAEL V. R. (1948) 1 T.L.R 308, the appellant was charged with attempting to sell diamonds. He pleaded guilty to the charge. The objects turned out not to be diamonds but only pieces of glass.
The issue on appeal was whether a plea of guilty was rightly entered in view that the ‘diamonds’ which the appellant had admittedly attempted to sell, were not diamonds at all. The court held:
i) It is immaterial that by reason of circumstances not known to the offender it is impossible to, in fact of commit the offence.
ii) We must look at the intention of the offender and to what he thinks he is doing when he began to carry it out. In this case the appellant must held to have committed the offence because he intended without license or authority to sell diamonds and believed that the objects he was trying to sell were in fact diamonds.
It is not the intention in itself, which constitute the offence there, must of course in addition to some overt act manifesting the intention. But where there is a clear intention to commit an offence and an overt act putting that intention into execution and belief that what is being done is something which is an offence, then that overt act undoubtedly constitutes an attempt to commit the offence, although for some reasons outside the doer’s knowledge the offence attempted can’t actually be committed.
Some Specific Offences Of Attempt
1) Section 45-attempted mutiny
2) Section 132-attempted rape
3) Section 150-attempted to procure abortion.
4) Section 155-attempted to commit unnatural offence.
5) Section 158-attempted to commit incest.
6) Section 211-attempted murder.
7) Section 217-attempted suicide.
8) Section 226-attempted to injure by explosive.
9) Section 287-attempted robbery.
10) Section 290-attempted extortion.
11) Section 320-attempted arson.
12) Section 322-attempting setting fire on crops.
13) Section 324-attempt to cast away vessels.
14) Section 327-attempt to destroy by explosives.
15) Section 382-punishment generally for attempts.
Conspiracies
Conspiracy is an agreement between two or more people to do unlawful act by unlawful means.
Ingredients of conspiracy
Ø There must be more than two or more persons.
Ø There must be an agreement, which is unlawful.
Ø There must be a particular thing that is aimed at.
The actus Reus of conspiracy is “an agreement” mere knowledge of the plan is not sufficient nor the mere intention to achieve unlawful object. To be conspiracy more than one person must agree, thus husband and wife for this purpose are no longer one person-S. 386A CPA.
Conspiracy may be completed even if no further act is done in pursuance of the agreement and provided that the stage of negotiation has been passed even though the parties have not yet settled the means to be employed.
To constitute conspiracy there need not be direct communication between the members nor there to be proved that the accused was present at its origin. The conspirators may join conspiracy at various times; any one may not know the full extent of the scheme to which he attaches himself. It is sufficient to prove that each conspirator knows that there is in existence or coming into existence a scheme, which goes beyond the illegal acts, which he agrees to do, and attaches him self to the scheme Quite slight participation in the scheme will suffice.
Conspiracy to commit an unlawful acts even an offence of strict liability requires mens rea. The prosecution must prove not only an agreement to amount to conspiracy between the conspirator to carry out an unlawful purpose but also an intention in the mind of the individual conspirator to carry out the unlawful purpose.
Since there is no agreement of one person alone, if one conspirator is acquitted then the other shall be acquitted even if he pleaded guilty.
One person may be convicted alone of conspiracy with persons who are known or not in the court, or dead or whose trial has been postponed. This is because, it is very difficult sometimes to get all the people who have conspired, and sometimes it is only possible to have only one person alone, provide that there is enough evidence of “unknown other or others’ In the case of R. V. KARIA 16 E.A.C.A 116,the appellants were convicted for conspiracy to export diamonds from Tanzania and individually for being in possession of diamonds. On appeal against the conviction the court confirmed the conviction.
“…conspirators do not normally meet together and execute a deed setting out the details their common unlawful purpose. It is a common place to say that an agreement to conspire may be deduced from any acts which the presumption of a common plan. That is why the prosecution is bound to call all the material witnesses before the court even though they give inconsistent accounts, in order that the whole of the facts may be before the court…”
In OGODIA & ERIMA V. UGANDA [1967] E.A. 137, the two appellants were convicted of conspiracy, the charge reads: that on February 24, 1966 at Entebbe they had conspired with other persons unknown to effect unlawful purpose namely to set up a road block and arrest the then prime minister Milton Obote. The court said:
“…Evidence was sufficient to justify the inference that the first appellant conspired with person or persons unknown to arrange for roadblock to arrest the Prime Minister…”
